DETAILED ACTION
Claim Rejections - 35 USC § 112
1. The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
2. Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1, 11, and 19, from which the remaining claims depend, it is not clear how the axis is defined by the receiving aperture. Examiner notes an axis can be defined as being normal to a plane or parallel to a plane, or a cylindrical aperture could define an axis of symmetry; however, no such relative language appears in the claim.
Claim Rejections - 35 USC § 103
3. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
4. Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over DE 20 2010 015 802 (Hidde) in view of US 9,555,937 (Houghton).
Regarding claim 1, Hidde teaches a liquid-dispensing container comprising:
a housing having a body adapted to hold a liquid (liquid container not shown but inherently disclosed) and a cap (1) coupled to the body (by threads 63), the cap having a support structure (59 and 61) defining a receiving aperture (the space radially inside 59 and 61) and a base inlet port (60); and
a nozzle (2) rotatably supported within the receiving aperture and rotatable about an axis defined by the receiving aperture (see Figs. 2a and b), the nozzle comprising:
a base portion (24) including a valve (28) having an inlet port (30), the nozzle configured to be rotated between an open position where the inlet port is substantially aligned and overlaps with the base inlet port to permit flow of fluid therethrough (see Fig. 2b) and a closed position where the inlet port is misaligned with the base inlet port to inhibit flow of fluid therethrough (see Fig. 2a), and
a body portion (21) extending from the base portion and defining an outlet (22).
Fidde as applied fails to teach that the body portion having an outer surface with at least one flat side configured to be grasped to rotate the nozzle between the open position and the closed position.
Houghton, analogous to rotationally activated dispeners, teaches it is known to provide flat sides on a dispensing base (19) which are configured to be grasped to rotate between open and closed positions (see col. 5, lines 20-30).
PNG
media_image1.png
388
590
media_image1.png
Greyscale
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Fidde, providing flat surfaces as taught by Houghton, motivated by the benefit of assisting a user in rotating the base, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al., 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Furthermore, regarding the physical combination, the question is not whether the prior art devices can be physically combined, but whether a person of ordinary skill in the art would have found it obvious to combine different features or elements of known devices in a predictable way. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983): "There is a distinction between trying to physically combine the two separate apparatus disclosed in two prior art references on the one hand, and on the other hand trying to learn enough from the disclosures of the two references to render obvious the claims in suit. ...Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference." See MPEP 2145(III).
Regarding claim 2, the at least one flat side includes opposing flat sides connected by curved segments (see Houghton annotated Fig. 2 above with regard to claim 1).
Regarding claim 3, the body portion of the nozzle comprises a first end defining the outlet of the nozzle and a second end adjacent the base portion,the body portion is tapered from the first end to the second end, and the first end of the body portion has a first width and the second end of the body portion has a second width that is greater than the first width (clearly seen in Fidde Figs. 1a and 1b whereby the spout 21 tapers from its wider base adjacen24 to the upper tip near opening 22).
Regarding claim 4, Fidde in view of Houghton as applied above fails to explicitly teach the body portion has a length defined between the first end and the second end, and wherein a ratio of the length of the body portion of the nozzle to the first width is greater than 3.
However, Examiner notes that the general conditions of the claim are present whereby the body portion tapers from bottom to top.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the body portion of Fidde in view of Houghton, forming it to have a length defined between the first end and the second end, and wherein a ratio of the length of the body portion of the nozzle to the first width is greater than 3, motivated by an obvious change in shape and size of the prior art, having a predictable outcome absent a teaching of an unexpected result.
A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In reDailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.). See MPEP 2144.04 (IV)(B).
A change in size, absent a teaching of an unexpected result, is within ordinary skill in the art. See MPEP 2144.04(IV)(A):
In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.).
PNG
media_image2.png
18
19
media_image2.png
Greyscale
In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
5. Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over DE 20 2010 015 802 (Hidde) in view of US 9,555,937 (Houghton) as applied above to claim 1, and further in view of US 2019/0183269 (Kalisz).
Regarding claim 6, Hidde in view of Houghton as applied above fails to teach that the nozzle includes a first portion defining a structure of the nozzle and a second portion overmolded onto the first portion.
Kalisz, analogous to drinking containers, teaches overmolding a softer material onto a harder base material in order to “provide a comfortable mouth engaging surface for a user” (para. [0023]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the nozzle of Hidde in view of Houghton, providing a second portion overmolded onto the first portion as taught by Kalisz, motivated by the benefit of a comfortable surface for a user’s mouth, having a predictable outcome absent a teaching of an unexpected result. See KSR International Co. v. Teleflex Inc. et al., 550 U.S. 2007 at 13, lines 22-25 which states, “When a work is available in one field of endeavor, design incentives ...can prompt variations of it, either in the same field or a different one. Furthermore, see id. at 13, lines 27-31 which states “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious”.
Regarding claim 7, the first portion is formed of a rigid material and a second portion is formed of a thermoplastic elastomer (see Kalisz para. [0041] teaching forming the spout of a hard plastic and overmolding silicone to form the pliable sleeve).
Allowable Subject Matter
6. Claims 11-20 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
7. Claims 5 and 8-10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
8. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 5, further comprising a seal coupled to the base portion of the nozzle proximate the inlet port, and wherein the seal includes a flat portion extending radially around the nozzle and an undulating portion extending from the flat portion around the inlet port.
Regarding claim 8, from which claims 9 and 10 depend, the prior art fails to teach the support structure includes a wall extending downward from an internal wall of the cap and a stop surface radially extending from the wall, and the nozzle includes a protrusion configured selectively engage the stop surface to restrict movement of the nozzle between the closed position and the open position.
Regarding claims 11 and 20, the prior art at least fails to teach the claimed a seal coupled to the base portion of the nozzle proximate the inlet port, the seal having a first portion extending circumferentially around the nozzle and an undulating portion extending from the first portion around the inlet port.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES N SMALLEY whose telephone number is (571)272-4547. The examiner can normally be reached M-F 9:00 am to 6:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at (571) 270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JAMES N SMALLEY/Examiner, Art Unit 3733
